Making a moral judgement
The most common mistakes when assessing mental capacity
Number 5 in Tim Farmer’s series
A divorce lawyer once told me that there are 3 sides to every story; his side, her side and the real side. Never is this truer than when assessing mental capacity. As professionals we are often presented with only a small fraction of the overall story. Unfortunately, time and again we see practitioners making a judgement of what the outcome of an assessment should be based on this information, rather than on whether the individual actually meets the necessary criteria for mental capacity.
I was once asked to assess an individual’s capacity to determine his ability to decide who he socialised with and whether he should be able to do this un-escorted. The individual concerned had an acquired brain injury and as such had a very poor understanding of risk – to the extent that his care plan was explicit in that he was not allowed to go anywhere un-escorted. The reason I had been asked to assess him was that he had recently been deemed to have capacity in this respect by his care team but his family disagreed with this. To cut a long story short I asked him about risk and gave him one of my favourite scenarios. ‘You are approached by a person (in this case a woman) who tells you that she is a murderess but that she fancies you and wants to take you somewhere quiet for a drink to get to know you better. Would you go?’ He replied “If she’s hot I’d go with her”.
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I spoke to his care team about this and queried with them his ability to judge risk and the fact that I believed his inability to do this meant he was unable to use this as part of his decision making process. To my surprise, his care team agreed with me stating that was the reason why he was currently not allowed to go anywhere un-escorted. I queried how then, they had come to the decision that he had capacity and they replied “because we thought it would be nice for him to have some time with other people alone”. Needless to say I was absolutely stunned.
It is important that we remember that we are asked to make a clinical decision, not a moral one. Either they meet the criteria of the 2 stage test (or whichever test is deemed to be appropriate) or they don’t. It’s as simple as that.
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